Introduction and background
1. This appeal arises from the judgment of the Small Claims Court at Mombasa (Hon. Gatambia Samuel Ndungu, Adjudicator) delivered on 15 May 2025 in Small Claims Court Commercial Case No. E227 of 2025, by which judgment was entered for the respondent, Four Parts Solutions Limited, against the appellant, Mombasa Parents Club trading as Nyali School, in the sum of Kshs 471,397.69 less Kshs 17,400/= being printer uplifting charges which the learned adjudicator found were not catered for in the parties' equipment lease agreements.
2. The respondent is in the business of leasing printers. By a statement of claim dated 27 February 2025 it sued the appellant for Kshs 471,397.69, being accumulated monthly charges in respect of printers leased to the appellant, principally a Kyocera TASKalfa C306i MFP and a Konica Minolta Bizhub 654e MFP. The respondent's case was that although formal machine rental contracts were executed with effect from 3 June 2024, it had in fact begun leasing printers to the appellant from January 2024; that invoices were raised monthly on the basis of page counts; that the appellant defaulted in payment; and that the printers were consequently uplifted from the appellant's premises on 17 January 2025. The respondent's case was supported by the witness statement of its director, Luc Vierendeel, dated 27 February 2025.
3. The two machine rental contracts were on record before the trial court, and were produced by both parties. Each is dated 3 June 2024 and each was executed on behalf of the appellant by its acting principal on 2 August 2024. Under contract number 03/06/1099A, relating to the Kyocera TASKalfa C306i (serial number V7F7510186), the agreed rental was Kshs 2.00 per printed black page and KSHS 10.00 per colour page, plus value added tax. Under contract number 03/06/1098A, relating to the Konica Minolta Bizhub 654e, the agreed rental was Kshs 1.35 per printed black page, plus value added tax. The record further shows that the machines were substituted from time to time in the course of the contracts: the Kyocera TASKalfa C306i serial number V7F7510186 was replaced on 11 September 2024 by a TASKalfa 306ci serial number V7F306913, which was in turn succeeded by a Konica Minolta Bizhub C360 serial number A0ED021026620 installed on 30 September 2024, each replacement being recorded on the face of the ensuing invoices.
4. The material terms, common to both contracts, were that payment was to be made within thirty days of the invoice date, failing which a further 10% charge plus VAT would be added; that “the monthly page counter information shall be made available to the client for invoice payment purposes”; that the respondent would be responsible for all maintenance of the machines, including drum units, developer units, paper feed rollers and toners specified by it, but that if a machine was found to have been abused or misused in any way the client would be responsible for all repair costs; and that the supplier was entitled to uplift, without notice, any machine involved in three or more weeks of non-payment.
5. According to the respondent's statement of account dated 17 February 2025, total billings to the appellant stood at Kshs 827,272.96 against payments of Kshs 355,875.27, leaving an outstanding balance of Kshs 471,397.69. The payments included cheques of Kshs 105,403/= received on 13 September 2024, Kshs 75,867/= received on 5 November 2024 and Kshs 51,093/= received on 11 February 2025. The outstanding balance comprised unpaid page-count invoices together with an invoice for the repair of a damaged developer unit, three late payment penalty charges, and a printer uplift charge of Kshs 17,400/=.
6. The appellant resisted the claim by its response to the statement of claim dated 21 March 2025, in which it denied owing the respondent any money. The response admitted the machine rental contracts of 3 June 2024 and pleaded, at paragraph 3.1, that their terms included that “the monthly page counter was to be made available to the Respondent upon invoicing for payment purposes” and that the respondent was to be responsible for all maintenance of the machines. Upon that footing the appellant asserted, at paragraph 3.2, that “every invoice raised must be accompanied by the relevant page counter reports substantiating the amounts charged. No other explanation whatsoever is required”; that in the absence of such reports it was impossible for it to process payments; that it had always paid within contractual timelines for every invoice supported by relevant page counters; that it was not liable for the late payment penalty invoices because the respondent, having failed to serve the relevant page counters, was itself the author of the delay; and that it was not liable for the uplifting charges because no term of the contract imposed that responsibility upon it.
7. The appellant's evidence was contained in the witness statement of Dominic Muange dated 21 March 2025, who took issue with the claim invoice by invoice. In summary, he stated that: invoice FP0534 of 15 March 2024 for Kshs 45,952.70 and invoice 00686 of 17 October 2024 for Kshs 31,484.72 had been settled by cheque number 000420 dated 6 March 2025 for Kshs 77,436/= and that the reason those invoices were paid on that date was that the respondent had clarified them on 17 February 2025; that invoices 00652, 00654, 00677, 00711 and 00756 were not payable because the respondent had “never furnished the Respondent with the relevant page counters” in support of the invoiced page charges; that invoice 00690 for repair of a damaged printer part was not payable because there was no express provision making the appellant responsible for maintenance and repair, the contract instead imposing all maintenance on the respondent; that the three late payment penalty invoices, 00720, 00754 and 00782, were not payable because the respondent was itself the author of the delay in payment, not having furnished the relevant page counters when serving the invoices; and that invoice 00755 for the uplift charge of Kshs 17,400/= was not payable because the contract made no provision for it.
8. It is significant that in support of that statement the appellant produced its own list and bundle of documents dated 21 March 2025, which included copies of the contracts, the cheque and its internal payment voucher, and each of the disputed invoices together with the corresponding page counters or photographs of meter readings — the bundle itself describing the counters as having been “furnished”, albeit, on the appellant's account, upon request. A number of those counter documents bear the appellant's own acknowledgment: the status page recording the start counters of the replacement TASKalfa 306ci and the status page recording the closing counters of the outgoing machine each carry the stamp of the Mombasa Parents Club marked “RECEIVED 11 SEP 2024”; a further status page is stamped “RECEIVED 09 OCT 2024”; and the meter count list recording the start counters of the Bizhub C360, annotated “delivered and configured, working OK”, is stamped and signed by the appellant's deputy principal on 11 September 2024.
9. The suit proceeded to hearing and, in the judgment now impugned, the learned adjudicator found that the respondent had proved its claim on a balance of probabilities, its case being, in his assessment, more credible than the appellant's denial of it. He entered judgment for the respondent in the sum claimed, less the uplift charge of Kshs 17,400/= which he found had no contractual foundation — thereby acceding to one of the appellant's invoice-specific objections — leaving an award of Kshs 453,997.69.
10. Two further matters of context should be noted. First, the cheque of Kshs 77,436/= issued in settlement of invoices FP0534 and 00686 was dated 6 March 2025, after the suit had been filed; the appellant's internal payment voucher for that sum, describing the payment as being for photocopy services, was prepared and approved by its principal on the same date. That sum was credited against the judgment sum. Secondly, the balance of the decretal sum, being Kshs 376,561/= was deposited as security pending the hearing and determination of this appeal in an interest-earning account at Family Bank, Account No. 092000033953, in the joint names of Sitonik Advocates and Mung'oma Mung'oma & Company Advocates.
The appeal
11. Aggrieved by the judgment, the appellant preferred this appeal by a memorandum of appeal dated 9 June 2025 raising five grounds, namely, that the learned trial adjudicator erred in fact and in law by: failing to appreciate that the relationship between the parties was strictly contractual and that the role of the court was limited to interpreting the terms of the contract; misapplying the balance of probabilities doctrine without any evidential justification; failing to specifically consider and examine the respondent's invoices and the page counters that were supplied; erroneously deducing the appellant's cheque that was ready for collection to be an admission and making it the sole basis of his holding; and, in view of those circumstances, totally misdirecting himself in delivering judgment in favour of the respondent by failing to consider and appreciate the specific nature of the respondent's claim, the appellant's pleadings, the evidence on record, the submissions, the authorities and the interest of justice in the wide spectrum.
12. The appellant prays that the appeal be allowed; that the judgment of the trial court be set aside and substituted with an order dismissing the respondent's claim with costs; that the costs of the appeal and of the proceedings in the lower court be awarded to the appellant; and that the sum deposited as security, together with accrued interest, be released to the appellant.
13. The appeal was canvassed by way of written submissions. The appellant's submissions are dated 6 March 2026 while the respondent's submissions are dated 16 March 2026.
Appellant's submissions
14. Learned counsel for the appellant condensed the grounds of appeal into three issues. On the first issue, counsel submitted that it was common ground before the trial court that the parties' relationship was contractual, and that the agreement expressly required invoices to be supported by proper page counter reports identifying the relevant printer, the relevant period and accurate meter readings. The appellant's case in the court below was that payment was conditional upon strict compliance with those documentation requirements; that several invoices lacked proper identification of printers, contained missing dates and were unsupported by complete page counter components; and that, significantly, the respondent's own director conceded in cross-examination that certain invoices lacked the relevant dates, the name of the machine or the relevant page counters. Despite that concession, the learned adjudicator held the respondent's claim to be “more credible” and entered judgment in its favour. This, it was submitted, amounted to a misdirection in law because where parties have reduced their obligations into a written contract, a court is bound to enforce the terms as agreed and cannot substitute them with a general assessment of credibility. Counsel relied on Centurion Engineers & Builders Limited v Kenya Bureau of Standards (Civil Appeal E398 of 2021) [2023] KECA 1289 (KLR), in which the Court of Appeal restated the position that:
“As this Court has severally stated, and now a longstanding principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts”.
15. On the second issue, counsel submitted that although the learned adjudicator correctly cited William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 on what amounts to proof on a balance of probabilities, he failed properly to apply it. The burden lay squarely on the respondent, as claimant, to establish that each invoice was accurate and that each invoice complied with the contractual documentation requirements. Counsel cited Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] eKLR for the proposition that, as a general proposition under section 107(1) of the Evidence Act, the legal burden of proof lies upon the party who invo Kshs the aid of the law and substantially asserts the affirmative of the issue. It was submitted that the appellant's submissions in the court below analysed each contested invoice and identified specific discrepancies, yet the judgment demonstrates no structured evaluation of those discrepancies — no analysis of specific invoice numbers, no finding on missing printer identification and no reasoning addressing the admitted gaps in documentation — the trial court instead concluding generally that the respondent's case was “more credible”. By entering judgment despite admitted evidential deficiencies, the trial court was said to have effectively shifted the burden onto the appellant to disprove the invoices, which is a misapplication of the law on burden of proof.
16. On the third issue, counsel submitted that the learned adjudicator improperly relied on the existence of a cheque said to be ready for collection and treated it as evidence of an admission of liability. The cheque in question, for Kshs 77,436/=, was issued subsequent to the filing of the suit and only after the respondent had, on 17 February 2025, clarified invoice number FP0534 for Kshs 45,952/= and invoice number 00686 for Kshs 31,484. Relying on Choitram v Nazari (1984) KLR 32, counsel submitted that admissions must be plain and obvious, “as plain as a pi Kshstaff”, before they can found a judgment, and that the inference drawn by the trial court had no proper legal basis and amounted to speculation rather than legal reasoning. Counsel further submitted, on the authority of Omungi v Mini Bakeries (Nairobi) Ltd (Appeal E007 of 2025) [2026] KEELRC 206 (KLR), citing Selle and another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, that a first appellate court is mandated to reconsider and re-evaluate the evidence and to make its own conclusions, and that this court is entitled to interfere where the trial court failed properly to evaluate the documentary evidence placed before it.
Respondent's submissions
17. Learned counsel for the respondent submitted that appeals from the Small Claims Court lie only on matters of law by dint of section 38 of the Small Claims Court Act, and relied on Rana Auto Selection Limited v Pride Kings Services Limited [2025] KEHC 18894 (KLR), where this court, sitting on appeal from that court, observed that:
“Because appeals from the Small Claims Court lie only on matters of law under Section 38 of the Small Claims Court Act, the Appellant must demonstrate not merely that the learned Adjudicator's factual conclusions were wrong or unconvincing, but that the Adjudicator applied an incorrect legal standard, misconstrued the law or took into account irrelevant legal considerations.”
18. Counsel drew attention to section 32(1) and (2) of the Small Claims Court Act, which provides that the court shall not be bound wholly by the rules of evidence and that, without prejudice to the generality of that provision, the court may admit as evidence in any proceedings before it any oral or written testimony, record or other material that the court considers credible or trustworthy even though the same would not be admissible as evidence in any other court under the law of evidence. It was submitted that the learned adjudicator did not ignore the legal requirement of proof but applied it within the flexible evidentiary regime which the Act permits, and that the appellant's complaints are, in substance, directed at the trial court's factual assessment, which lies beyond this court's jurisdiction on an appeal of this nature.
19. On the contract, counsel submitted, on the authority of Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR), that both parties are bound by the terms of their contracts. The contractual requirement was that the monthly page counter information be made available to the appellant for invoice payment purposes, and this was done: all page counters were generated from the appellant's own premises in the presence of the appellant's staff; the respondent's technician would print the closing reading, which would also constitute the opening reading for the next month, or, where the machine had no paper, photograph the readings and leave a copy of the counters at the school; the counters on record bear the appellant's own stamp acknowledging receipt; and both parties in fact produced the same counters and invoices in their respective bundles of documents, all adding up to the figure of Kshs 471,397.69. Counsel emphasised that the appellant never, before the hearing, wrote any letter or email complaining that the counters were illegible, undated or lacked serial numbers, and that those complaints surfaced for the first time at the trial.
20. Counsel then addressed the contested invoices individually. As regards invoices FP00652 and FP00654, counsel demonstrated by computation that the page counts billed, when reconciled against the opening counters recorded in the machine rental contract for the Kyocera TASKalfa C306i, yield exactly Kshs 52,870.48, which is the aggregate of the two invoices, showing that they were accurately derived from the machine counters. The difference in serial numbers appearing on certain counters was explained by the replacement of the machines, a matter expressly recorded on the face of invoices FP00654, FP00686 and FP00677 and clarified in the respondent's emails of 17 February 2025. Photographs of counters, rather than print-outs, were relied upon for invoices FP00677, FP00711 and FP00756 because the printer lacked paper, as clarified in the respondent's email correspondence. The repair invoice, FP00690, was payable under the contractual term rendering the client responsible for repair costs where the machine is abused or misused, the respondent's evidence being that the developer unit was damaged by the appellant's operator inserting yellow toner into the black toner slot and that repairs were carried out by the respondent's own technician; and the late payment penalty invoices, numbers 00720, 00754 and 00782, were payable under the express term imposing a further 10% charge plus VAT upon late payment.
21. As to the cheque, counsel submitted that the appellant issued cheque number 000420 dated 6 March 2025 for payment of invoices FP0534 and 00686 upon the filing of the trial suit; that the amount was deducted from the judgment sum; and that this explains why the appellant deposited Kshs 376,561/= as the decretal balance in the joint interest-earning account. Counsel urged that the respondent proved its case on a balance of probabilities, that the trial court committed no error of law, and that the appeal, being without merit, should be dismissed with costs to the respondent.
Scope of an appeal from the Small Claims Court
22. The right of appeal invoked by the appellant is conferred by section 38(1) of the Small Claims Court Act, No. 2 of 2016, which confines appeals from that court to this court to “matters of law”. The starting point, therefore, is to identify what a matter of law is, for the jurisdiction of this court begins and ends there.
23. What constitutes a matter of law was authoritatively considered by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, where the court explained that the phrase embraces three elements: first, the interpretation or construction of a provision of the Constitution, a statute, subsidiary legislation or a legal doctrine; secondly, the application of the law to a set of facts or evidence on record; and thirdly, the evaluation of the conclusions of a trial court where it is contended that those conclusions were based on no evidence, were not supported by the established facts or evidence on record, or were so perverse that no reasonable tribunal would have arrived at them.
24. Two consequences follow for an appeal such as the present one. First, this court does not sit to re-hear the facts or to re-assess the credibility of witnesses it never saw or heard. The duty of a first appellate court articulated in Selle v Associated Motor Boat Co. Ltd (supra), on which the appellant relied, operates in appeals from the Small Claims Court only in this modified sense: the court re-examines the record not in order to substitute its own findings of fact, but in order to test the decision below for errors of law, including the question whether the findings made had any evidential foundation at all. Secondly, a factual conclusion of the trial court may be disturbed only where it rests on no evidence, or on a misapprehension of the evidence, or is one which no tribunal properly directing itself could have reached; it is only in those circumstances that a complaint about facts crystallises into a question of law.
25. It must also be borne in mind that the Small Claims Court is, by legislative design, a forum of simplicity, informality and expedition. Section 32 of the Act, to which the respondent referred, relieves that court of the strictures of the law of evidence and permits it to act on any material that it considers credible or trustworthy. A judgment of that court is accordingly not to be measured against the standards of elaboration expected of the superior courts; what matters is whether the decision discloses the basis upon which it was reached and whether that basis is sustainable in law.
Issues for determination
26. From the grounds of appeal and the rival submissions, the following issues arise for determination: first, whether the learned adjudicator erred in law in his approach to the enforcement of the parties' contracts; secondly, whether the learned adjudicator misapplied the burden and standard of proof; thirdly, whether the learned adjudicator's treatment of the appellant's cheque, and of the documentary evidence generally, discloses an error of law; and, finally, what orders ought to be made as to the deposited decretal sum and costs.
Whether the learned adjudicator erred in law in his approach to enforcement of the contracts
27. Both parties invoke the same principle: that parties are bound by the terms of their contract and that it is not the business of the courts to rewrite contracts for them. The principle, affirmed in Centurion Engineers & Builders Limited v Kenya Bureau of Standards (supra) and Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited (supra), is not in doubt and nothing further need be said of it. The real question is what the contracts, properly construed, actually required of the respondent, for that is a question of construction and therefore a question of law which this court is both entitled and bound to consider.
28. The appellant's case, consistently maintained in its response to the statement of claim, in Mr. Muange's witness statement and in the submissions on appeal, is built on the proposition that the contracts required each invoice to be supported by “relevant page counters” in a particular form, identifying the relevant printer, the relevant period and accurate meter readings, such that payment was conditional upon strict compliance with those documentation requirements, and that, as the statement puts it, any other mode of proof “is not contractual and is thus illegal”. With respect, that is not what the contracts say. The relevant term, appearing in the standard conditions of both contracts, is in these words:
“The monthly page counter information shall be made available to the client for invoice payment purposes.”
29. Nothing in that clause, or anywhere else in the contracts, prescribes the form which the page counter information must take; nothing requires that each counter bear a serial number, a date or any particular identifying legend; nothing excludes a photograph of the meter screen as a mode of making the information available; and nothing stipulates that the appellant's obligation to pay for pages actually printed is suspended unless and until documentation of a particular formality is supplied. The clause is a facility for verification; it is not couched as a condition precedent to liability. The construction urged by the appellant would require the court to read into the contracts stringent conditions which the parties never expressed. That would itself be the very rewriting of contracts which Centurion Engineers forbids. The anti-rewriting principle on which the appellant leans, in other words, cuts against the appellant and not in its favour. The appellant's own pleading, indeed, exposes the gap: paragraph 3.1 of the response to the statement of claim accurately recited the term as being that the monthly page counter was to be made available to the appellant upon invoicing for payment purposes; the proposition that every invoice must be accompanied by relevant page counter reports, with “no other explanation whatsoever” sufficing, first appears at paragraph 3.2 as the appellant's own deduction from that term; a deduction which the term, on its plain language, does not bear.
30. Whether the page counter information was in fact made available to the appellant was then a pure question of fact for the trial court, and on that question the record speaks loudly — not least through the appellant's own bundle. The appellant itself produced each disputed invoice together with its page counters or meter photographs; the respondent's bundle contained the same counters together with the clarification correspondence relating, in particular, to invoices 00652, 00677, 00686 and 00711, so that the counter evidence was before the trial court from both sides of the record. Several of those counter documents bear the appellant's own contemporaneous acknowledgments: the status pages recording the closing counters of the outgoing Kyocera machine and the start counters of its replacement are each stamped “Mombasa Parents Club – RECEIVED 11 SEP 2024”; another is stamped “RECEIVED 09 OCT 2024”; and the meter count list recording the start counters of the Bizhub C360, annotated as delivered, configured and working, is stamped and signed by the appellant's own deputy principal on 11 September 2024. To this must be added the respondent's evidence that readings were taken at the appellant's premises in the presence of its staff with print-outs or photographs left behind; the emails of 30 January, 4 and 17 February 2025 forwarding invoices, counters and clarifications; the absence of any letter or email from the appellant, at any time before the hearing, complaining that any counter was illegible, undated or unidentified; and the appellant's part payments of Kshs 105,403/= Kshs 75,867/= and Kshs 51,093/= in September 2024, November 2024 and February 2025 respectively, made without recorded protest.
31. In the face of those stamps, the appellant's complaint necessarily narrows from an assertion that counters were never furnished to a complaint about when and in what form they were furnished — Mr. Muange's statement describing the counters in the appellant's own bundle as having been furnished “upon request”. But once it is accepted, as the stamped documents compel, that counter documents were being received and acknowledged by the school's own officers in September and October 2024 as the machines were exchanged, the question whether the monthly counter information was sufficiently made available for invoice payment purposes became one of weight and degree; quintessentially a matter for the trier of fact, and one on which the trial court's affirmative conclusion had abundant support.
32. The deficiencies which the respondent's director is said to have conceded in cross-examination, that is, the missing dates or serial numbers on some of the counters, were likewise all the subject of explanation before the trial court: the successive replacement of the machines accounted for the differing serial numbers, a matter recorded on the face of invoices 00654, 00686 and 00677 and in the clarification emails; photographs of the meter screen rather than print-outs were taken where the machine had run out of paper, as the emails relating to invoices 00677, 00711 and 00756 explain; and the scanning of documents for filing had affected the legibility of some copies, the originals having been supplied to the appellant in the ordinary course. Whether to accept those explanations, and what weight to attach to the conceded imperfections, were matters for the adjudicator, who was entitled under section 32 of the Act to act upon that material if he considered it credible and trustworthy. He did, and no error of law arises.
33. One further point of construction arises under this head. Mr. Muange's statement contended that invoice 00690, for the repair of a damaged developer unit and attendant labour, was not payable because there was no express provision making the appellant responsible for maintenance and repair, the contract instead imposing all maintenance on the respondent. The premise is half right: the standard conditions do place responsibility for all maintenance; drum units, developer units, paper feed rollers and toners — on the respondent. But the same conditions provide, in terms, that if the machine has been found to be abused or misused in any way the client shall be responsible for all repair costs. The two clauses stand together without difficulty: routine maintenance is the supplier's burden; repair necessitated by the client's abuse or misuse of the machine is the client's. The respondent's evidence, reflected on the face of the invoice, was that the developer unit was damaged when the appellant's operator ins
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1. This appeal arises from the judgment of the Small Claims Court at Mombasa (Hon. Gatambia Samuel Ndungu, Adjudicator) delivered on 15 May 2025 in Small Claims Court Commercial Case No. E227 of 2025, by which judgment was entered for the respondent, Four Parts Solutions Limited, against the appellant, Mombasa Parents Club trading as Nyali School, in the sum of Kshs 471,397.69 less Kshs 17,400/= being printer uplifting charges which the learned adjudicator found were not catered for in the parties' equipment lease agreements.
2. The respondent is in the business of leasing printers. By a statement of claim dated 27 February 2025 it sued the appellant for Kshs 471,397.69, being accumulated monthly charges in respect of printers leased to the appellant, principally a Kyocera TASKalfa C306i MFP and a Konica Minolta Bizhub 654e MFP. The respondent's case was that although formal machine rental contracts were executed with effect from 3 June 2024, it had in fact begun leasing printers to the appellant from January 2024; that invoices were raised monthly on the basis of page counts; that the appellant defaulted in payment; and that the printers were consequently uplifted from the appellant's premises on 17 January 2025. The respondent's case was supported by the witness statement of its director, Luc Vierendeel, dated 27 February 2025.
3. The two machine rental contracts were on record before the trial court, and were produced by both parties. Each is dated 3 June 2024 and each was executed on behalf of the appellant by its acting principal on 2 August 2024. Under contract number 03/06/1099A, relating to the Kyocera TASKalfa C306i (serial number V7F7510186), the agreed rental was Kshs 2.00 per printed black page and KSHS 10.00 per colour page, plus value added tax. Under contract number 03/06/1098A, relating to the Konica Minolta Bizhub 654e, the agreed rental was Kshs 1.35 per printed black page, plus value added tax. The record further shows that the machines were substituted from time to time in the course of the contracts: the Kyocera TASKalfa C306i serial number V7F7510186 was replaced on 11 September 2024 by a TASKalfa 306ci serial number V7F306913, which was in turn succeeded by a Konica Minolta Bizhub C360 serial number A0ED021026620 installed on 30 September 2024, each replacement being recorded on the face of the ensuing invoices.
4. The material terms, common to both contracts, were that payment was to be made within thirty days of the invoice date, failing which a further 10% charge plus VAT would be added; that “the monthly page counter information shall be made available to the client for invoice payment purposes”; that the respondent would be responsible for all maintenance of the machines, including drum units, developer units, paper feed rollers and toners specified by it, but that if a machine was found to have been abused or misused in any way the client would be responsible for all repair costs; and that the supplier was entitled to uplift, without notice, any machine involved in three or more weeks of non-payment.
5. According to the respondent's statement of account dated 17 February 2025, total billings to the appellant stood at Kshs 827,272.96 against payments of Kshs 355,875.27, leaving an outstanding balance of Kshs 471,397.69. The payments included cheques of Kshs 105,403/= received on 13 September 2024, Kshs 75,867/= received on 5 November 2024 and Kshs 51,093/= received on 11 February 2025. The outstanding balance comprised unpaid page-count invoices together with an invoice for the repair of a damaged developer unit, three late payment penalty charges, and a printer uplift charge of Kshs 17,400/=.
6. The appellant resisted the claim by its response to the statement of claim dated 21 March 2025, in which it denied owing the respondent any money. The response admitted the machine rental contracts of 3 June 2024 and pleaded, at paragraph 3.1, that their terms included that “the monthly page counter was to be made available to the Respondent upon invoicing for payment purposes” and that the respondent was to be responsible for all maintenance of the machines. Upon that footing the appellant asserted, at paragraph 3.2, that “every invoice raised must be accompanied by the relevant page counter reports substantiating the amounts charged. No other explanation whatsoever is required”; that in the absence of such reports it was impossible for it to process payments; that it had always paid within contractual timelines for every invoice supported by relevant page counters; that it was not liable for the late payment penalty invoices because the respondent, having failed to serve the relevant page counters, was itself the author of the delay; and that it was not liable for the uplifting charges because no term of the contract imposed that responsibility upon it.
7. The appellant's evidence was contained in the witness statement of Dominic Muange dated 21 March 2025, who took issue with the claim invoice by invoice. In summary, he stated that: invoice FP0534 of 15 March 2024 for Kshs 45,952.70 and invoice 00686 of 17 October 2024 for Kshs 31,484.72 had been settled by cheque number 000420 dated 6 March 2025 for Kshs 77,436/= and that the reason those invoices were paid on that date was that the respondent had clarified them on 17 February 2025; that invoices 00652, 00654, 00677, 00711 and 00756 were not payable because the respondent had “never furnished the Respondent with the relevant page counters” in support of the invoiced page charges; that invoice 00690 for repair of a damaged printer part was not payable because there was no express provision making the appellant responsible for maintenance and repair, the contract instead imposing all maintenance on the respondent; that the three late payment penalty invoices, 00720, 00754 and 00782, were not payable because the respondent was itself the author of the delay in payment, not having furnished the relevant page counters when serving the invoices; and that invoice 00755 for the uplift charge of Kshs 17,400/= was not payable because the contract made no provision for it.
8. It is significant that in support of that statement the appellant produced its own list and bundle of documents dated 21 March 2025, which included copies of the contracts, the cheque and its internal payment voucher, and each of the disputed invoices together with the corresponding page counters or photographs of meter readings — the bundle itself describing the counters as having been “furnished”, albeit, on the appellant's account, upon request. A number of those counter documents bear the appellant's own acknowledgment: the status page recording the start counters of the replacement TASKalfa 306ci and the status page recording the closing counters of the outgoing machine each carry the stamp of the Mombasa Parents Club marked “RECEIVED 11 SEP 2024”; a further status page is stamped “RECEIVED 09 OCT 2024”; and the meter count list recording the start counters of the Bizhub C360, annotated “delivered and configured, working OK”, is stamped and signed by the appellant's deputy principal on 11 September 2024.
9. The suit proceeded to hearing and, in the judgment now impugned, the learned adjudicator found that the respondent had proved its claim on a balance of probabilities, its case being, in his assessment, more credible than the appellant's denial of it. He entered judgment for the respondent in the sum claimed, less the uplift charge of Kshs 17,400/= which he found had no contractual foundation — thereby acceding to one of the appellant's invoice-specific objections — leaving an award of Kshs 453,997.69.
10. Two further matters of context should be noted. First, the cheque of Kshs 77,436/= issued in settlement of invoices FP0534 and 00686 was dated 6 March 2025, after the suit had been filed; the appellant's internal payment voucher for that sum, describing the payment as being for photocopy services, was prepared and approved by its principal on the same date. That sum was credited against the judgment sum. Secondly, the balance of the decretal sum, being Kshs 376,561/= was deposited as security pending the hearing and determination of this appeal in an interest-earning account at Family Bank, Account No. 092000033953, in the joint names of Sitonik Advocates and Mung'oma Mung'oma & Company Advocates.
The appeal
11. Aggrieved by the judgment, the appellant preferred this appeal by a memorandum of appeal dated 9 June 2025 raising five grounds, namely, that the learned trial adjudicator erred in fact and in law by: failing to appreciate that the relationship between the parties was strictly contractual and that the role of the court was limited to interpreting the terms of the contract; misapplying the balance of probabilities doctrine without any evidential justification; failing to specifically consider and examine the respondent's invoices and the page counters that were supplied; erroneously deducing the appellant's cheque that was ready for collection to be an admission and making it the sole basis of his holding; and, in view of those circumstances, totally misdirecting himself in delivering judgment in favour of the respondent by failing to consider and appreciate the specific nature of the respondent's claim, the appellant's pleadings, the evidence on record, the submissions, the authorities and the interest of justice in the wide spectrum.
12. The appellant prays that the appeal be allowed; that the judgment of the trial court be set aside and substituted with an order dismissing the respondent's claim with costs; that the costs of the appeal and of the proceedings in the lower court be awarded to the appellant; and that the sum deposited as security, together with accrued interest, be released to the appellant.
13. The appeal was canvassed by way of written submissions. The appellant's submissions are dated 6 March 2026 while the respondent's submissions are dated 16 March 2026.
Appellant's submissions
14. Learned counsel for the appellant condensed the grounds of appeal into three issues. On the first issue, counsel submitted that it was common ground before the trial court that the parties' relationship was contractual, and that the agreement expressly required invoices to be supported by proper page counter reports identifying the relevant printer, the relevant period and accurate meter readings. The appellant's case in the court below was that payment was conditional upon strict compliance with those documentation requirements; that several invoices lacked proper identification of printers, contained missing dates and were unsupported by complete page counter components; and that, significantly, the respondent's own director conceded in cross-examination that certain invoices lacked the relevant dates, the name of the machine or the relevant page counters. Despite that concession, the learned adjudicator held the respondent's claim to be “more credible” and entered judgment in its favour. This, it was submitted, amounted to a misdirection in law because where parties have reduced their obligations into a written contract, a court is bound to enforce the terms as agreed and cannot substitute them with a general assessment of credibility. Counsel relied on Centurion Engineers & Builders Limited v Kenya Bureau of Standards (Civil Appeal E398 of 2021) [2023] KECA 1289 (KLR), in which the Court of Appeal restated the position that:
“As this Court has severally stated, and now a longstanding principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts”.
15. On the second issue, counsel submitted that although the learned adjudicator correctly cited William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 on what amounts to proof on a balance of probabilities, he failed properly to apply it. The burden lay squarely on the respondent, as claimant, to establish that each invoice was accurate and that each invoice complied with the contractual documentation requirements. Counsel cited Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] eKLR for the proposition that, as a general proposition under section 107(1) of the Evidence Act, the legal burden of proof lies upon the party who invo Kshs the aid of the law and substantially asserts the affirmative of the issue. It was submitted that the appellant's submissions in the court below analysed each contested invoice and identified specific discrepancies, yet the judgment demonstrates no structured evaluation of those discrepancies — no analysis of specific invoice numbers, no finding on missing printer identification and no reasoning addressing the admitted gaps in documentation — the trial court instead concluding generally that the respondent's case was “more credible”. By entering judgment despite admitted evidential deficiencies, the trial court was said to have effectively shifted the burden onto the appellant to disprove the invoices, which is a misapplication of the law on burden of proof.
16. On the third issue, counsel submitted that the learned adjudicator improperly relied on the existence of a cheque said to be ready for collection and treated it as evidence of an admission of liability. The cheque in question, for Kshs 77,436/=, was issued subsequent to the filing of the suit and only after the respondent had, on 17 February 2025, clarified invoice number FP0534 for Kshs 45,952/= and invoice number 00686 for Kshs 31,484. Relying on Choitram v Nazari (1984) KLR 32, counsel submitted that admissions must be plain and obvious, “as plain as a pi Kshstaff”, before they can found a judgment, and that the inference drawn by the trial court had no proper legal basis and amounted to speculation rather than legal reasoning. Counsel further submitted, on the authority of Omungi v Mini Bakeries (Nairobi) Ltd (Appeal E007 of 2025) [2026] KEELRC 206 (KLR), citing Selle and another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, that a first appellate court is mandated to reconsider and re-evaluate the evidence and to make its own conclusions, and that this court is entitled to interfere where the trial court failed properly to evaluate the documentary evidence placed before it.
Respondent's submissions
17. Learned counsel for the respondent submitted that appeals from the Small Claims Court lie only on matters of law by dint of section 38 of the Small Claims Court Act, and relied on Rana Auto Selection Limited v Pride Kings Services Limited [2025] KEHC 18894 (KLR), where this court, sitting on appeal from that court, observed that:
“Because appeals from the Small Claims Court lie only on matters of law under Section 38 of the Small Claims Court Act, the Appellant must demonstrate not merely that the learned Adjudicator's factual conclusions were wrong or unconvincing, but that the Adjudicator applied an incorrect legal standard, misconstrued the law or took into account irrelevant legal considerations.”
18. Counsel drew attention to section 32(1) and (2) of the Small Claims Court Act, which provides that the court shall not be bound wholly by the rules of evidence and that, without prejudice to the generality of that provision, the court may admit as evidence in any proceedings before it any oral or written testimony, record or other material that the court considers credible or trustworthy even though the same would not be admissible as evidence in any other court under the law of evidence. It was submitted that the learned adjudicator did not ignore the legal requirement of proof but applied it within the flexible evidentiary regime which the Act permits, and that the appellant's complaints are, in substance, directed at the trial court's factual assessment, which lies beyond this court's jurisdiction on an appeal of this nature.
19. On the contract, counsel submitted, on the authority of Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR), that both parties are bound by the terms of their contracts. The contractual requirement was that the monthly page counter information be made available to the appellant for invoice payment purposes, and this was done: all page counters were generated from the appellant's own premises in the presence of the appellant's staff; the respondent's technician would print the closing reading, which would also constitute the opening reading for the next month, or, where the machine had no paper, photograph the readings and leave a copy of the counters at the school; the counters on record bear the appellant's own stamp acknowledging receipt; and both parties in fact produced the same counters and invoices in their respective bundles of documents, all adding up to the figure of Kshs 471,397.69. Counsel emphasised that the appellant never, before the hearing, wrote any letter or email complaining that the counters were illegible, undated or lacked serial numbers, and that those complaints surfaced for the first time at the trial.
20. Counsel then addressed the contested invoices individually. As regards invoices FP00652 and FP00654, counsel demonstrated by computation that the page counts billed, when reconciled against the opening counters recorded in the machine rental contract for the Kyocera TASKalfa C306i, yield exactly Kshs 52,870.48, which is the aggregate of the two invoices, showing that they were accurately derived from the machine counters. The difference in serial numbers appearing on certain counters was explained by the replacement of the machines, a matter expressly recorded on the face of invoices FP00654, FP00686 and FP00677 and clarified in the respondent's emails of 17 February 2025. Photographs of counters, rather than print-outs, were relied upon for invoices FP00677, FP00711 and FP00756 because the printer lacked paper, as clarified in the respondent's email correspondence. The repair invoice, FP00690, was payable under the contractual term rendering the client responsible for repair costs where the machine is abused or misused, the respondent's evidence being that the developer unit was damaged by the appellant's operator inserting yellow toner into the black toner slot and that repairs were carried out by the respondent's own technician; and the late payment penalty invoices, numbers 00720, 00754 and 00782, were payable under the express term imposing a further 10% charge plus VAT upon late payment.
21. As to the cheque, counsel submitted that the appellant issued cheque number 000420 dated 6 March 2025 for payment of invoices FP0534 and 00686 upon the filing of the trial suit; that the amount was deducted from the judgment sum; and that this explains why the appellant deposited Kshs 376,561/= as the decretal balance in the joint interest-earning account. Counsel urged that the respondent proved its case on a balance of probabilities, that the trial court committed no error of law, and that the appeal, being without merit, should be dismissed with costs to the respondent.
Scope of an appeal from the Small Claims Court
22. The right of appeal invoked by the appellant is conferred by section 38(1) of the Small Claims Court Act, No. 2 of 2016, which confines appeals from that court to this court to “matters of law”. The starting point, therefore, is to identify what a matter of law is, for the jurisdiction of this court begins and ends there.
23. What constitutes a matter of law was authoritatively considered by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, where the court explained that the phrase embraces three elements: first, the interpretation or construction of a provision of the Constitution, a statute, subsidiary legislation or a legal doctrine; secondly, the application of the law to a set of facts or evidence on record; and thirdly, the evaluation of the conclusions of a trial court where it is contended that those conclusions were based on no evidence, were not supported by the established facts or evidence on record, or were so perverse that no reasonable tribunal would have arrived at them.
24. Two consequences follow for an appeal such as the present one. First, this court does not sit to re-hear the facts or to re-assess the credibility of witnesses it never saw or heard. The duty of a first appellate court articulated in Selle v Associated Motor Boat Co. Ltd (supra), on which the appellant relied, operates in appeals from the Small Claims Court only in this modified sense: the court re-examines the record not in order to substitute its own findings of fact, but in order to test the decision below for errors of law, including the question whether the findings made had any evidential foundation at all. Secondly, a factual conclusion of the trial court may be disturbed only where it rests on no evidence, or on a misapprehension of the evidence, or is one which no tribunal properly directing itself could have reached; it is only in those circumstances that a complaint about facts crystallises into a question of law.
25. It must also be borne in mind that the Small Claims Court is, by legislative design, a forum of simplicity, informality and expedition. Section 32 of the Act, to which the respondent referred, relieves that court of the strictures of the law of evidence and permits it to act on any material that it considers credible or trustworthy. A judgment of that court is accordingly not to be measured against the standards of elaboration expected of the superior courts; what matters is whether the decision discloses the basis upon which it was reached and whether that basis is sustainable in law.
Issues for determination
26. From the grounds of appeal and the rival submissions, the following issues arise for determination: first, whether the learned adjudicator erred in law in his approach to the enforcement of the parties' contracts; secondly, whether the learned adjudicator misapplied the burden and standard of proof; thirdly, whether the learned adjudicator's treatment of the appellant's cheque, and of the documentary evidence generally, discloses an error of law; and, finally, what orders ought to be made as to the deposited decretal sum and costs.
Whether the learned adjudicator erred in law in his approach to enforcement of the contracts
27. Both parties invoke the same principle: that parties are bound by the terms of their contract and that it is not the business of the courts to rewrite contracts for them. The principle, affirmed in Centurion Engineers & Builders Limited v Kenya Bureau of Standards (supra) and Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited (supra), is not in doubt and nothing further need be said of it. The real question is what the contracts, properly construed, actually required of the respondent, for that is a question of construction and therefore a question of law which this court is both entitled and bound to consider.
28. The appellant's case, consistently maintained in its response to the statement of claim, in Mr. Muange's witness statement and in the submissions on appeal, is built on the proposition that the contracts required each invoice to be supported by “relevant page counters” in a particular form, identifying the relevant printer, the relevant period and accurate meter readings, such that payment was conditional upon strict compliance with those documentation requirements, and that, as the statement puts it, any other mode of proof “is not contractual and is thus illegal”. With respect, that is not what the contracts say. The relevant term, appearing in the standard conditions of both contracts, is in these words:
“The monthly page counter information shall be made available to the client for invoice payment purposes.”
29. Nothing in that clause, or anywhere else in the contracts, prescribes the form which the page counter information must take; nothing requires that each counter bear a serial number, a date or any particular identifying legend; nothing excludes a photograph of the meter screen as a mode of making the information available; and nothing stipulates that the appellant's obligation to pay for pages actually printed is suspended unless and until documentation of a particular formality is supplied. The clause is a facility for verification; it is not couched as a condition precedent to liability. The construction urged by the appellant would require the court to read into the contracts stringent conditions which the parties never expressed. That would itself be the very rewriting of contracts which Centurion Engineers forbids. The anti-rewriting principle on which the appellant leans, in other words, cuts against the appellant and not in its favour. The appellant's own pleading, indeed, exposes the gap: paragraph 3.1 of the response to the statement of claim accurately recited the term as being that the monthly page counter was to be made available to the appellant upon invoicing for payment purposes; the proposition that every invoice must be accompanied by relevant page counter reports, with “no other explanation whatsoever” sufficing, first appears at paragraph 3.2 as the appellant's own deduction from that term; a deduction which the term, on its plain language, does not bear.
30. Whether the page counter information was in fact made available to the appellant was then a pure question of fact for the trial court, and on that question the record speaks loudly — not least through the appellant's own bundle. The appellant itself produced each disputed invoice together with its page counters or meter photographs; the respondent's bundle contained the same counters together with the clarification correspondence relating, in particular, to invoices 00652, 00677, 00686 and 00711, so that the counter evidence was before the trial court from both sides of the record. Several of those counter documents bear the appellant's own contemporaneous acknowledgments: the status pages recording the closing counters of the outgoing Kyocera machine and the start counters of its replacement are each stamped “Mombasa Parents Club – RECEIVED 11 SEP 2024”; another is stamped “RECEIVED 09 OCT 2024”; and the meter count list recording the start counters of the Bizhub C360, annotated as delivered, configured and working, is stamped and signed by the appellant's own deputy principal on 11 September 2024. To this must be added the respondent's evidence that readings were taken at the appellant's premises in the presence of its staff with print-outs or photographs left behind; the emails of 30 January, 4 and 17 February 2025 forwarding invoices, counters and clarifications; the absence of any letter or email from the appellant, at any time before the hearing, complaining that any counter was illegible, undated or unidentified; and the appellant's part payments of Kshs 105,403/= Kshs 75,867/= and Kshs 51,093/= in September 2024, November 2024 and February 2025 respectively, made without recorded protest.
31. In the face of those stamps, the appellant's complaint necessarily narrows from an assertion that counters were never furnished to a complaint about when and in what form they were furnished — Mr. Muange's statement describing the counters in the appellant's own bundle as having been furnished “upon request”. But once it is accepted, as the stamped documents compel, that counter documents were being received and acknowledged by the school's own officers in September and October 2024 as the machines were exchanged, the question whether the monthly counter information was sufficiently made available for invoice payment purposes became one of weight and degree; quintessentially a matter for the trier of fact, and one on which the trial court's affirmative conclusion had abundant support.
32. The deficiencies which the respondent's director is said to have conceded in cross-examination, that is, the missing dates or serial numbers on some of the counters, were likewise all the subject of explanation before the trial court: the successive replacement of the machines accounted for the differing serial numbers, a matter recorded on the face of invoices 00654, 00686 and 00677 and in the clarification emails; photographs of the meter screen rather than print-outs were taken where the machine had run out of paper, as the emails relating to invoices 00677, 00711 and 00756 explain; and the scanning of documents for filing had affected the legibility of some copies, the originals having been supplied to the appellant in the ordinary course. Whether to accept those explanations, and what weight to attach to the conceded imperfections, were matters for the adjudicator, who was entitled under section 32 of the Act to act upon that material if he considered it credible and trustworthy. He did, and no error of law arises.
33. One further point of construction arises under this head. Mr. Muange's statement contended that invoice 00690, for the repair of a damaged developer unit and attendant labour, was not payable because there was no express provision making the appellant responsible for maintenance and repair, the contract instead imposing all maintenance on the respondent. The premise is half right: the standard conditions do place responsibility for all maintenance; drum units, developer units, paper feed rollers and toners — on the respondent. But the same conditions provide, in terms, that if the machine has been found to be abused or misused in any way the client shall be responsible for all repair costs. The two clauses stand together without difficulty: routine maintenance is the supplier's burden; repair necessitated by the client's abuse or misuse of the machine is the client's. The respondent's evidence, reflected on the face of the invoice, was that the developer unit was damaged when the appellant's operator ins
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